Two NLRB Members Decline to Endorse Current Rule for Determining Whether an Employer Lawfully Withdrew Recognition from a Union

As background, between 1951 and 2001, the Board would find that an employer lawfully withdrew recognition from an incumbent union if the employer could prove that it had a reasonable, good-faith doubt about whether a majority of employees continued to support the union. Celanese Corp., 95 NLRB 664 (1951). In 2001, the Clinton Board reversed precedent and held that an employer may lawfully withdraw recognition from an incumbent union only if it bears the heavier burden of proving that the union in fact lost majority support. Levitz Furniture Co., 333 NLRB 717 (2001).

In Port Printing Ad & Specialties, 344 NLRB No. 34 (2005), the Bush Board applied Levitz Furniture and held that an employer violated Section 8(a)(5) by withdrawing recognition from an incumbent union because the employer failed to prove that the union in fact lost majority support. Nevertheless, Chairman Battista and Member Schaumber noted that “they did not participate in Levitz and express no view as to whether it was correctly decided.” Id., slip op. at 1 n.2.

As noted in previous posts, the Board traditionally does not reverse precedent unless at least three Members vote to do so.